Madras High Court
Harigopal vs Murali on 28 July, 2021
S.A.(MD)No.412 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.412 of 2008
Harigopal ... Appellant
Vs.
1.Murali
2.Kusumakumari ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree in A.S.No.361 of 2005 on the file of the
Principal District Judge, Tiruchirappalli dated 06.08.2007, reversing the
judgment and decree in O.S.No.431 of 1996, on the file of the Sub Judge,
Tiruchirappalli, dated 05.09.2005.
For Appellant : Mr.V.Chandrasekar
For Respondents : Mr.K.K.Senthil for R1
JUDGEMENT
The plaintiff in O.S.No. 431 of 1996 on the file of the learned Sub Court,
Tiruchirappalli is the appellant in this second appeal. The suit was one for
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S.A.(MD)No.412 of 2008
partition. The suit items are two in number. The appellant/Harigopal filed the
said suit claiming 1/3rd share in the suit properties. The plaintiff and the first
defendant are the brothers while the second defendant is the sister. There is no
dispute that the suit items stood in the name of their father/Late.Rajarama Rao.
Rajarama Rao passed away intestate in the year 1981. Both the items are
house properties. While the plaintiff is residing in the first schedule, the first
defendant is residing in the second schedule.
2.The suit claim was contested by the first defendant. According to the
first defendant, the second item was purchased by him in the name of their
father and therefore, the second item cannot be partitioned. Based on the rival
pleadings, issues were framed.
3.The plaintiff examined himself as P.W.1. Exs.A1 to 5 were marked.
The first defendant examined himself as D.W.1. Exs.B1 to B7 were marked.
4.The trial judge after a consideration of the evidence on record granted
preliminary decree allotting 1/2th share in favour of the plaintiff and the first
defendant. For reasons which I am not able to agree, the second
defendant/sister was totally left out in the matter of allotment. But then, the
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S.A.(MD)No.412 of 2008
second defendant who remained ex-parte did not choose to challenge the same.
Therefore, I can safely conclude that the matter has attained finality as far as
the second defendant is concerned. The contest is only between the two
brothers.
5.The first defendant/Murali filed A.S.No.361 of 2005 before the District
Court, Tiruchirappalli. By the impugned judgment and decree dated
06.08.2007, the appellate court partly allowed the appeal and granted
preliminary decree for partition of the plaintiff's 1/3rd in suit 'A' schedule
property. However as regards 'B' schedule property, the appeal was dismissed.
Challenging the same, this second appeal has been filed.
6.The second appeal was admitted on the following substantial question
of law:-
“(i) Whether the judgment and decree of the Court
below with respect to plaint B schedule is perverse, in view of
its finding that the property was purchased by the contesting
respondent in the name of his father?”
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S.A.(MD)No.412 of 2008
7.Even though the second defendant/Kusumakumari did not file any
appeal, the fact remains that the first appellate court had chosen to recognize
her 1/3rd share in the suit property. Now the only question that arises for
consideration is whether the plaintiff and the second defendant can have any
claim in the second item. The stand of the first defendant is that it was he who
funded the purchase of the second item. But the first defendant cannot be
permitted to raise such a defence in view of the statutory mandatory set out in
Section 4(ii) of the Prohibition of Benami Property Transactions Act, 1988. It
reads as follows:-
“(4) The Law commission has, inter alia, recommended the
inclusion of the following provisions in the Bill to replace the
Ordinance namely:-
(i) ...................
(ii) entering into a benami transaction after the
commencement of the new law should be declared as an offence.
However, an exception should be made for transactions entered
into by the husband or father for the transfer of properties in the
name of the wife or unmarried daughter for their benefit. By this,
the doctrine of advancement as obtaining in the English law will
be incorporated into the Indian Statute Book;”
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S.A.(MD)No.412 of 2008
8.It is well settled that Section 4(ii) of the Act will apply to all the suits
filed after the Act came into force. The Act came into force on 05.09.1988. The
suit was filed only in the year 1996. Obviously, the defence taken by the first
defendant will be hit by Section 4(ii) of the Act. Of course, the first defendant
has taken care not to employ the expression “benami”, but the cumulative
effect of the defence is that even thought the properties stood in the name of the
father/Rajarama Rao, he is the real owner. This is nothing but a plea of benami.
The Act forbids taking of such a defence. The first appellate court had failed to
take note of Section 4(ii) of the Central Act 45 of 1988. Therefore, the
dismissal of the suit as regards 2nd item/'B' schedule will have to be necessarily
interfered with. The substantial question of law is answered in favour of the
appellant court and the impugned judgment and decree passed by the first
appellate is accordingly modified. It is declared that the plaintiff as well as the
two defendants will have 1/2 (half) share in each of the items. Of course, the
right of first defendant to adduce evidence in final decree proceedings to tilt
equity in his favour is left open. The second appeal is allowed. No costs.
28.07.2021
Index : Yes / No
Internet : Yes/ No
ias
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S.A.(MD)No.412 of 2008
G.R.SWAMINATHAN, J.
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Principal District Court,
Tiruchirappalli.
2.The Sub Court,
Tiruchirappalli.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.412 of 2008
28.07.2021
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